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Maltese v. Township of North Brunswick6/20/2002
pensation of the mayor, council members and department heads shall be fixed by the council immediately after its organization. [Emphasis added.]
The statutory scheme in a Mayor-Council-Administrator form of government is clear. In the exercise of executive authority, the mayor appoints officials, including department heads, subject to the advice and consent of the council. The council, in the exercise of its legislative authority, by ordinance, creates the various department heads and sets their compensation. The mayor has the authority to veto any such ordinance, subject to the override authority of the council.
Except in the context of his or her veto power, the mayor has no authority to set the salary or compensation of any department head. In that sense, any promises, representations or agreements by the mayor to a department head with respect to his or her salary, compensation or benefits, are ultra vires. Conversely, the council, on behalf of the municipality, has the authority to so act. See Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J. Super. 389, 396-98 (App. Div. 1993) (municipal council had statutory authority to enact ordinance authorizing six-month retroactive salary increases for departmental directors at a meeting other than quadrennial organizational meeting); City of Camden v. Dicks, 135 N.J. Super. 559, 561-62 (Law Div. 1975) (statutory grant of authority of a Faulkner Act municipality to grant compensation to its employees was broad enough to include payment for unused sick leave in the form of additional compensation upon retirement). Therefore, in that sense, permitting plaintiff to receive the same benefits afforded to employees covered by the SOA collective bargaining agreement is not ultra vires, in that the council could elect to do so.
Therefore, we conclude that Mayor Matacera was without authority to bind the municipality when he promised plaintiff he would receive the benefits contained in the SOA agreement. However, the council did have the authority to act and ratify the terms of the mayor's agreement with plaintiff. Accordingly, when considering the application of equitable principles, the focus must be directed on any actions taken by the council with respect to the benefits promised.
N.J.S.A. 40A:9-10 specifically requires that "the governing body of the municipality shall fix the amount of salary, wages or other compensation to be paid to . . . municipal officers and employees[.]" Moreover, the salaries, wages or compensation paid to officers and employees of municipalities must be established by ordinance. N.J.S.A. 40A:9-165; see Liebeskind, supra, 265 N.J. Super. at 397-98 (making clear that the provisions of N.J.S.A. 40A:9-165 are applicable to Faulkner Act municipalities).
The Local Budget Law, N.J.S.A. 40A:4-1 to -88 establishes the procedures required for adoption of a municipal budget, determining the amounts to be raised by taxation and appropriation of budgeted funds for specific purposes. It is clear that no public official or entity may expend any public funds nor incur any liability that involves the payment to plaintiff of public funds for which no appropriation is provided. N.J.S.A. 40A:4-57; N.J.S.A. 40:69A-149.14.
The Local Fiscal Affairs Law, N.J.S.A. 40A:5-1 to -47 prescribes procedures that municipalities must follow in paying appropriated public funds to vendors, employees or other claimants. N.J.S.A. 40A:5-16 establishes the general requirement that the governing body shall not pay public funds unless the claimant presents a certified bill detailing the nature of the claim and a certification by a duly designated officer or employee stating that the goods have been received o
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